Close to the end of this month (May), and following two years of pain-staking consultations, the World Humanitarian Summit will be convened. The summit comes in reply to, and based on, a call to action by the UN Secretary-General Ban Ki Moon aiming to “re-inspire and reinvigorate a commitment to humanity and to the universality of humanitarian principles. Initiate a set of concrete actions and commitments aimed at enabling countries and communities to better prepare for and respond to crises, and be resilient to shocks and share best practices which can help save lives around the world, put affected people at the center of humanitarian action, and alleviate suffering“. |
1.Introduction The purpose of this brief outline is to highlight one’s right to the highest attainable standard of health, covering all what this right encompasses in terms of the right itself and the duties placed upon states and probably upon corporations to ensure it. This preview will in particular shed the light on the way this right comes into play in the effort to fight the Ebola virus, the pandemic that has been and still is tormenting several states and claiming the lives of thousands, in an effort to cover the challenges which are facing the fulfillment of the state’s obligations prescribed by this right in light of this wide-spread disease and wrapping-up in what can be called recommendations to ease implementation. 2.Background and Legal Basis: Enshrined primarily in the constitution of the World Health Organization of 1946 and later in the Universal Declaration of Human Rights 1948, the right to health has fallen victim to the east and west fight for prevalence. During the cold war, the right to health was seen as an aspiration more than a right acknowledged by a legally binding instrument as the 1966 covenant on Economic, Social and Cultural Rights[1]. It is rather ironic that it remained an inferior right until the world faced HIV/AIDS in the late 80s[2], even at that point the concentration was on civil and political rights in the aim of fulfilling the program against the pandemic[3]. The equality between these two categories of rights was realized after the Cold War[4], and the concentration on the right to health went beyond HIV to a wider scope where all challenges need be faced. As our preview is concentrated around Ebola as an epidemic and the role of the right to health, particularly what comes to other rights and freedoms, it is worthy to mention that people’s response to such challenges of health were never actions of modern times, it can go back to 1348 with the Bubonic Plague which invaded Europe, when Venice closed down its territories to all potentially infected travelers as well as the “cordon sanitaire” of many trading cities of Europe[5]. Strict regulatory measures remained for centuries ahead and no sure reason was given as to how diseases were transferred, one way that was seen as preventive was through not touching the poor, and the fear was the stimulus for much action that came at the expense of other equally important rights.[6] Universal:
3.Interpretation The Right, strictu and latu sensu The Right needs to be understood in terms of two factors, one, which is the individual’s biological and socio-economic preconditions, and two, which relates to the state’s available resources, and thus shall be seen as a right to the enjoyment of a variety of facilities, goods, services and conditions necessary for the realization of the right, and never as the right to be healthy because illness can come from many other different factors[7], and thus states cannot guarantee our health. This is why it is more accurate to describe it as a right to the [highest attainable] standard of health and not as an unconditional right to health. The latter To be deemed as fulfilled, the right to health should nevertheless be acceptable in terms of being respectful of medical ethics and culturally appropriate as well as sensitive to gender and life cycle requirements. One other equally important element is quality, for health facilities, goods and services must be scientifically and medically appropriate and of good quality[9]. The right to health was also given a specific interpretation in terms of application to specific groups or individuals, not only through the covenant itself, but also through other treaties like CEDAW, the Convention on the Rights of the Child, Migrants, HIV/AIDS infected persons, persons with disabilities etc. and thus reference to General Comments and Recommendations by the relevant treaty bodies would surely provide complementary, subject-specific interpretation of the right to health as well as the duties of states. Duties of States On this matter, the four essential components[10] that were stipulated above are the guidelines by which Duties of states are fulfilled. However as any right, the state has three kinds of obligations that it should work on realizing, the obligation to respect as in “do not harm”, to protect which covers a wide range of positive measures, together with ensuring that non-state actors do not violate this right and that is by addressing these actors and regulating their conduct, and to fulfill- which can be subdivided into obligations to facilitate[11], promote and provide[12]. Although it might be well understood that this right could not form a tangible programmatic goal to be reached by states[13], it should never be understood that states have no obligation to show immediate results in the implementation of the rights stipulated in the Covenant, the right to health being among them. As every right contains elements lending themselves to immediate implementation[14], the obligation to insure non-discrimination[15] is one duty which is of immediate effect by its nature, development of plans of action and legislation are other examples. This raises another issue closely related which is that by including such a provision as the progressive realization of this right, the covenant has given an implicit acknowledgment of the states’ resource constraints and the time it takes to realize these rights[16] but at least the states should show the minimum effort in this sense. In an effort to fill in this “discretion[17]” which is given to governments, the CESCR has stressed on the existence of core obligation or priority implementation facing the states, particularly as to the right to health in General Comment 14[18] among them is access to minimum essential food, access to housing, shelter and sanitation and adequate supply of safe drinking water. Interplay with other rights The Right to the highest attainable standard of health is not a right that stands alone and can be realized apart from other rights. This is the case indeed with all the rights of the 1966 covenant; the matter of interdependence and indivisibility[19] is a reality which can be felt by mere logic. For example, the right to health cannot be seen without a link to the right to food[20], neither without the right to adequate housing[21] or the right to a healthy environment[22] or the right to work and the rights at work[23]. On the other hand, it is rather to be referred to as a right impacting the enjoyment of other rights as the right to life[24] and physical integrity. It is worthy to mention how central health is to security and development whether in developing[25] or industrialized societies. However development is often focused on economic growth rather than health per se, which was unfortunately left to develop its own strategies. Another important requirement is a sustainable human development which cannot be realized without peace which is as well highly essential for health promotion[26]. 4.Ebola Particularity Epidemics in general are serious public health concerns that require swift action to contain and annihilate. The state’s obligation to fulfill, extends to taking a positive action to recognize the highest attainable standard of health required of it, namely through fighting the epidemic and preventing it from spreading into the society. The population must then expect a lot from the state. The states in question here are those that are directly and indirectly concerned with Ebola. Both states have the duty to fight this epidemic and contain it, but to what extent can such an obligation be fulfilled in light of other rights which are at stake, and is it acceptable in such a situation that the public health comes at the expense of equally important rights? How can consolidation be made between individual rights being breached and the collective right of the society to health? What about cases when a collective right needs to be sacrificed for such a cause? Indeed, the rights at stake are not purely those of Economic, Social or Cultural nature, but extend to civil and political rights that we shall attempt to cover below. A.The Mano River Union Countries Described as one of the most complex developmental challenges in recent time, the fight these countries are undertaking facing Ebola is a challenge that is setting its toll on their whole system. The crisis has literally sent the appreciable development that has occurred over the past years into dust, worsening the unemployment situation and imposing serious stress on the fiscal capabilities of the countries.[27] The disease has devastated the health sector with illness deaths from within, not to mention the weakened capability of governments to manage their revenues expenditures and public debts to meet national health, social and development obligations. To stop the outbreak, provide medication, treat people, increase security and prevent outbreaks in non-affected areas, resources are needed. this leads to exponential increases in expenditure for communication campaigns and awareness raising, facilities and equipment, training of health caregivers, social protection mechanisms among others, and these should be seen in light of recurrent expenses ranging from salaries to education and sacrifice in developmental expenditures from roads to schools and hospitals which reflect in shortages, not to mention the weakening of the extractive and agricultural industries, worsening the overall economic and social situation of the country and would be leading to socio-economic collapse[28]. On another hand, the right to health should be seen through the eyes of the health workers on the ground and the guarantee that they receive all the equipment required for their own protection[29]. Women are also seen to in need of specific attention for they are more vulnerable, whether due to the fact that they have the obligation to carry the sick, during pregnancy, or by the mere fact that the majority of nurses are women, not to mention lack of knowledge on ways and means of protection. One other controversial matter is that of burying rituals. The population in these countries are of a majority of Muslims, and burial of the dead according to Muslim prescriptions requires the washing of the body, a process which also involves women making them more vulnerable to contracting the disease, not to mention the distribution of the belongings of the deceased that could potentially be infected and then the collective burial, which all contribute to the spreading of the disease[30] and might raise the matter of the right to religion which poses a challenge to the implementation of the right to health. Challenges of human rights rise as well in terms of legislation enacted in light of the crisis, e.g in Sierra Leone’s 2014 law on criminalization of harboring anyone who has or may have contracted ebola, a move which could be counter-productive in spreading fear. B. Other Countries The matter in these countries revolves around Quarantines, which are in fact a shared challenge. Quarantines are important for the containment of the disease but one shall not forget that they in fact restrict people’s right to freedom of movement which could be acceptable for the greater good conditioned by the existence of measures that are proportionate, time-bound, undertaken for legitimate aims, strictly necessary and most importantly applied in a non-discriminatory way[31]. Arbitrary quarantines have backward repercussions and do not contribute to the aim, and it is essential that the rights of those quarantined be respected. Not to mention the use of force in quarantines which should be prohibited unless abiding by policing standards, none-lethal as a priority where lethal can be used in self-defense only. Further Readings: Toebes B. The Right to Health as a Human Right in International Law (Intersenti-Hart, Groningen: School of Human Rights Research, 1999 1- EMRO Technical Paper, Regional Committee for the Eastern Mediterranean, October 2002 - On Health and Human Security 2- SABRI B. Health and Development, La Revue de Santé de la Méditerranée, Vol 6, No.4, 2000 - On Health and Development 3- AL-KHAYAT M.H. Health as a Human Right in Islam, WHO - On Health and Islam 4- HENDRIKS A., The Right to Health, Promotion and Protection of Women’s Right to Sexual and Reproductive Health Under International Law: The Economic Covenant and the Women’s Convention. The American University Law Review: Vol. 44 pp.1123-1144 – On Women’s Right to Health 5- Clapham A. et al (eds.) Realizing the Right to Health, November 2012 Í Riedel, E. “The Human Right to Health. Conceptual Foundations” pp.23-41 Endnotes: [1] NYGREN-KRUG Helena, Health and Human Rights – A Historical Perspective, UN Special, May 2008: 673 § 4: http://bit.ly/1xCes1j [2] 30 years of AIDS, 1986-87 timeline, aids.gov [3] Supra note 1 [4] The international community recognized the equality and interdependence of all human rights in the World Conference on Human Rights through the adoption of the Vienna Declaration and Program of Action of June 25th, 1993 [5] Special administrations were set-up to handle quarantines that were enforced by posting soldiers at the frontiers. [6] The Word Health Report – Bridging the Gaps, The Evolution of WHO, 1995, pp. 85 [7] For example genetic illness or one’s susceptibility for illness, General Comment 14 § 9 [8] General Comment 14, CESCR § 11 [9] The realization of these elements is closely related to the state’s availability of resources, ibid § 12 [10] Coined by Reidel E. as: The “illities” or “triple AQs” or “triad” in The Right to Life and the Right to Health, In Particular the Obligation to Reduce Child Mortality– Hamburg, October 2008, pp. 7, footnote 29 [11]The right to health has been under General comment 14 given an obligation to promote interpretation added upon the task by the state, in particular the obligation to disseminate information of appropriate health information on a healthy lifestyle s and nutrition etc. [12] CESCR General Comment 12 [13] Art. 2(1) of the ICESCR [14] REIDEL E. GIACCA G. GOLAY C, Economic, Social and Cultural Rights: Contemporary Issues and Challenges, The Development of Economic Social and Cultural Rights in International Law, OUP, 2014, pp. 12 [15] Art. 2(1) of the ICESCR [16] Office of the High Commissioner for Human Rights - WHO, Fact Sheet 30: The Right to Health, pp. 23 [17] See supra note 14 §6 [18] Supra note 8 §43-44 [19] See supra not 4 [20] Considered in CRC art. 24(2)(c) and CEDAW art 12(2) to be part of the right to health of both children and women, and touched upon by CESCR in General Comment 12 para.25. [21] Article 11, para 1 of ICESCR and on this matter See General Comment 4 §8 [22] As seen by Article 12(2)(b) of ICESCR [23]Article 12(2)(b) speaks of industrial hygiene and 12(2)(c) identifies prevention, treatment and control of occupational diseases as part of the scope of the right to health. Approximately seventy 70 ILO conventions address occupational health issues. [24] Article 6, General Comment 6, Human Right Committee – in a specifying the relationship between reduction of infant mortality and fostering of life expectancy by fighting epidemics [25] See also Health and Poverty, WHO South East Asia Region, 12th Meeting of Ministers of Health, 1994 [26] Resolution 4, Regional Committee for Africa, WHO, September 1996 [27] Report, UNDP Africa Policy Note, Vol.1, No. 3, 24 October 2014 [28] Abdoulaye Mar Dieye, the Director of the Regional Bureau for Africa at the United Nations Development Programme (UNDP), undp.org, 5 Nov. 2014 [29] The WHO Ebola Response Roadmap, pages 10 & 11, http://bit.ly/1zLdQp1 [30] Protocol on dignified burial of infected body, WHO, 7 Nov 2014: http://bit.ly/1sjzqg3 [31] General Comment 14 (2000) §28-29 Ahmad Suleiman Ahmad Suleiman is an independent legal researcher in international law, with over 4 years of research experience he has worked as an independent consultant for governmental and non-governmental organisations in the Middle East and Europe. His research emphasis is international humanitarian law, human rights law and international criminal law. Editor's Note: Within the context and in preparation for the Expert Panel which the Platform is scheduled to hold in early November 2015, we bring this piece written by Professor Théo Boutruche, one of the panel experts. This piece, which was originally posted by the author on his own blog (find the link below) provides you with a preliminary idea of the issue of fact finding and its relationship with the law applicable. We avail of the opportunity to thank Professor Boutruche on his contribution, and wish him continued fruitful efforts in blogging, and providing readers with state-of-the-art information on this interesting topic. Enjoy! This could be a non-issue. Indeed one may wonder why fact-finding would have anything to do with the law. After all, bodies involved in such activities are by nature primarily concerned with making factual findings. Understandably, as a result, a large part of the research, projects and literature on fact-finding have been focusing on the various aspects of establishing facts, and much less on the surrounding legal questions. This changed as commissions of inquiry and fact-finding bodies have been increasingly mandated to investigate human rights and International Humanitarian Law (IHL) violations. This lead Dapo Akande and Hannah Tonkin to ask in a post on the EJIL: Talk! Blog whether commissions of inquiry are a new form of adjudication. There is a myriad of legal issues arising from the work of fact-finding bodies. For example, in a recent and very interesting paper, Dov Jacobs and Catherine Harwood analyse the migration of International Criminal Law concepts into the work of international commissions of inquiry and its impact on international fact-finding. They suggest that while this trend may be beneficial in improving the “quality” of fact-finding, and hence the credibility of the conclusions, it also raises several challenges (see“International Criminal Law Outside the Courtroom: The Impact of Focusing on International Crimes for the Quality of Fact-Finding by International Commissions of Inquiry”). Of course, for any type of fact-finding to be meaningful it needs to be credible. This requires a sound and elaborated methodology following a minimum standard of proof to establish facts. So far credibility related to how facts are ascertained, such as questions around the type and reliability of sources used. Conversely, as fact-finding bodies are increasingly called to make legal determinations and interpret existing unsettled rules or concepts of international law, these mechanisms’ role and practice in this regard attract more legal scrutiny. There is an inherent relationship between the facts and the law, and separating the two elements may be difficult when investigations are about allegations of human rights violations. As Jean Salmon noted the expression ‘ascertaining’ facts is misleading as it suggests that the operation is about ascertaining an objective phenomenon that would then be ‘confronted’ to the legal norm. On the contrary, the law influences the facts in many respects; for example, this author suggests that the relevance of a fact is linked to the choice of the applicable law (see here, p. 296). The facts covered through an inquiry are indeed framed by the elements of the very rule allegedly violated and it is only through legal expertise that one can select the relevant facts from the huge quantity of information around a given incident. A set of legal issues arises then when facts relate to certain rules that are controversial or unclear. This is particularly the case in the field of IHL norms regulating the conduct of hostilities. In a publication on“Credible Fact-Finding and Allegations of International Humanitarian Law Violations: Challenges in Theory and Practice”, I identified some of those challenges. For example the way norms regulating the conduct of hostilities are designed calls for establishing certain facts that are difficult to verify. In addition, fact-finding must cover all factual elements of these norms in order to be able to reach a legal conclusion, such as aspects related to the attacker, the way weapons were used, the nature of the target, the effects of the attack and the defender. There is a constant challenge of taking into account two perspectives. The first one concerns the issue of time. The legality of an attack depends on an ex-ante evaluation by the attacker, while the facts are established after the attack (ex-post). The other aspect is to look at the actor involved, i.e. the attacker or the defender. For example the concept of military objective depends on the plans of the attacker and the perceived behavior of the defender. It is therefore crucial to get the facts AND the law right as the way fact-finding bodies apply the law can affect the credibility of the findings as much as the methodology used to establish the facts. In a recent research paper (Selecting and Applying Legal Lenses in Monitoring, Reporting, and Fact-Finding Missions, see here) I drafted for the Harvard Group of Professionals on Monitoring, Reporting, and Fact-finding, I reviewed the work of some 15 fact-finding missions and commissions of inquiry. This paper describes and analyses the current practice to identify strengths, gaps, and challenges, in order to present options to improve the ways practitioners involved in Monitoring, Reporting and Fact-Finding activities articulate and apply legal frameworks. While one cannot expect fact-finding missions to qualify every single legal issue, nor elaborate too much on legal details or the content of the law given, it seems that greater awareness and legal justification of some issues could improve the consistency and credibility of fact-finding bodies’ conclusions. The AuthorThéo Boutruche Phd Dr. Theo Boutruche, Independent Consultant in International Human Rights and Humanitarian Law (Lebanon) and Former IHL/Human Rights Expert of the Independent International Fact-Finding Mission on the Conflict in Georgia. Currently teaching at Notre-Dame University and USEK in Lebanon and has taught international law, human rights law and IHL in various universities in Europe, most recently at the University College London. See Original Post from Professor Boutruche's Blog dated October 14th 2013 http://www.theartoffacts.org/2013/10/14/getting-the-facts-and-the-law-right/
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